FEDERAL COURT OF AUSTRALIA Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 632 RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS ON BEHALF OF THE WONGATHA PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS WAG 6005 OF 1998 LINDGREN J 17 MAY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6005 OF 1998 BETWEEN: RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS JUDGE: LINDGREN J DATE OF ORDER: 17 MAY 2002 WHERE MADE: SYDNEY the court Orders in respect of the hearing period 17 june 2002 to 2 august 2002 as follows: [In the following orders: * "GLSC respondents" means those respondents who are applicants in the overlapping Wutha, Koara, Mantjintjarra Ngalia and Ngalia Kutjunkatja applications; * "Cosmo Newberry respondents" means the respondents who are applicants in the overlapping Cosmo Newberry application; * "Maduwongga respondents" means the respondents who are applicants in the overlapping Maduwongga application.] Recall of witnesses for cross-examination 1. The Group 6A respondents are entitled to cross-examine further Mervyn Sullivan, Kalman Murphy and Troy Chapman. 2. The Group 5A respondents are entitled to cross-examine further Aubrey Lynch and Leo Thomas. 3. The Group 5B respondents are entitled to cross-examine further Aubrey Lynch. 4. Orders 1, 2 and 3 are without prejudice to the further cross-examination of Lenny Ashwin, Danny Harris and Ron Harrington-Smith, whose cross-examinations are not yet complete. Locations of hearing 5. The Court will hear the testimony of Dolly Walker (Pukungka), Maisie Beaman and Polly Bond in Leonora. 6. The Court will hear the testimony of Kado Muir and Paddy Walker on the following subjects relating to the following stories at those sites: Site Subject (a) Mount Leonora (Gwalia Hill) The dingo, that is, the Papa Tjukurrpa (b) Marshall's Pool } A particular Tjukurrpa story involving (c) Katampul (Wilson's Patch) } the emu and the possum (d) Bull Neck Breakaway Another Tjukurrpa story involving the emu and the possum 7. The Court will hear the testimony of Dolly Walker in relation to the Mingari site at that site. 8. The Court will use any part of a day remaining available after hearing the testimony referred to in (5), (6) and (7) above plus two further days, in hearing testimony to be led by the applicants and the GLSC respondents in Leonora. 9. The Court will hear the remaining evidence to be led by the applicants, the GLSC respondents and the Maduwongga respondents in Kalgoorlie. 10. Subject to (11) below, the Court will hear the testimony to be led on behalf of the Cosmo Newberry respondents at Cosmo Newberry. 11. The Court will hear the testimony to be led on behalf of the Cosmo Newberry respondents relating to the following sites, as identified in the Site Register for the Cosmo Newberry respondents by Dr Lee Sackett, at those sites: Yilka (site 4.1) Yilurn (site 4.2) Pilpirr/Minnie Creek (site 6.9) Points of claim 12. Order 18 made on 2 April 2002 be varied as follows: (a) By substituting "27 May 2002" for "12 April 2002"; and (b) By inserting the words "as far as is reasonably practicable" between the words "provide" and "a". Restricted evidence 13. Orders 14 and 15 below operate in relation to evidence to be given at the following sites by the following witnesses: Site Witnesses Mingari Dolly Walker (Pukungka) Pilpirr/Minnie Creek Andrew Watson Michael Edwards Hudson Westlake Terrance Westlake Wana/Wayne Westlake Livingston West Tommy Simms Cyril Simms Philip West 14. With respect to evidence to be given by Dolly Walker (Pukungka) as to women's Dreamtime Beings and stories, and the Mingari/Tjilkamarta stories and the Warra Walpurr, Miilka and Mingan Manngu stories associated with the Mingari site: Hearing (a) The testimony will be given in camera as indicated in orders (b), (c) and (d) below; (b) Apart from the Judge, only adult females (including female Court staff) are to be present when the evidence is given; (c) Subject to 14(b) above, no male person aware of the making of this order shall be within 50 metres of the place at which the testimony is being given while it is being given; (d) The testimony shall not be broadcast over loud speaker or by radio; and (e) The testimony given shall not be directly or indirectly divulged: (i) to any person except an adult female who is aware of the terms of this order and the Judge; or (ii) for any purpose other than the purposes of this proceeding or proceeding WAG 6011 of 2000 and of any appeal against a judgment or order made in either of them. (f) The solicitor for the applicants and the GLSC respondents must inform Ms Walker before she testifies: (i) that the Court may set aside or vary today's order; and (ii) that male Judges may sit on any appeal. Transcript (g) The transcript of Ms Walker's testimony, and the audio and electronic records of it from which the transcript is made, are to be separated from the general transcript and records. The audio and electronic records must be transcribed by an adult female. Whereas the general transcript is to be printed on white paper, the transcript of Ms Walker's testimony is to be printed on pink paper, paginated chronologically with the general transcript. The transcript must not be transmitted or otherwise dealt with by email. (h) The transcript of the restricted evidence shall have a covering sheet clearly marked with the date of the hearing at which the restricted evidence was given and the words: "Gender Restricted Evidence – adult females only – see orders of Lindgren J made 17 May 2002 in proceeding WAG 6005 of 1998". (i) The transcript of the restricted evidence shall have the same note printed on each page. (j) The transcript must not be viewed by persons other than adult females and the Judge. (k) Female counsel for the parties, with the assistance of their clients' respective female experts, if any, shall use their best endeavours to agree upon the evidence given in restricted session that may be made available as non-confidential transcript, and upon a statement that may be tendered as to the effect, without disclosing the content, of the remaining restricted material. (l) Following the conclusion of this proceeding or of any appeal against the decision given in it, the parties other than the applicants and the GLSC respondents shall destroy all copies of all gender restricted evidence within their possession, power or control, and file an affidavit of destruction and serve a copy of that affidavit on the applicants and the GLSC respondents. (m) Save for the copies for the Court and for any person present at the hearing of the evidence (which copies shall be numbered by the Registry's remote hearings co-ordinator and the name of the recipient recorded by the co-ordinator), copies must not be made of the transcript. 15. With respect to the evidence to be given by Andrew Watson, Michael Edwards, Hudson Westlake, Terrance Westlake, Wana/Wayne Westlake, Livingston West, Tommy Simms, Cyril Simms and Philip West about men's stories and ceremonies at the Pilpirr/Minnie Creek site: (a) The testimony will be given in camera as indicated in orders (b), (c) and (d) below. (b) Only adult males (including male Court staff) but not uninitiated Aboriginal adult males, are to be present when the evidence is given. (c) No person other than non-Aboriginal adult males and initiated Aboriginal males aware of the making of this order shall be within 250 metres of the place at which the testimony is being given while it is being given. (d) The testimony shall not be broadcast over loud speaker or by radio. (e) The testimony given shall not be directly or indirectly divulged: (i) to any person except an adult male (but not an uninitiated Aboriginal adult male) who is aware of the terms of this order and the Judge; or (ii) for any purpose other than the purposes of this proceeding or proceeding WAG 144 of 1998 and of any appeal against a judgment or order made in either of them. (f) The solicitor for the Cosmo Newberry respondents must inform each of Andrew Watson, Michael Edwards, Hudson Westlake, Terrance Westlake, Wana/Wayne Westlake, Livingston West, Tommy Simms, Cyril Simms and Philip West before he testifies: (i) of the possibility that the Court may set aside or vary today's order; and (ii) that female Judges may sit on any appeal. (g) The transcript of the testimony of Andrew Watson, Michael Edwards, Hudson Westlake, Terrance Westlake, Wana/Wayne Westlake, Livingston West, Tommy Simms, Cyril Simms and Philip West and the audio and electronic records of it from which the transcript is made, are to be separated from the general transcript and records. The audio and electronic records must be transcribed by an adult male. Whereas the general transcript is to be printed on white paper, the transcript of Andrew Watson, Michael Edwards, Hudson Westlake, Terrance Westlake, Wana/Wayne Westlake, Livingston West, Tommy Simms, Cyril Simms and Philip West is to be printed on blue paper, paginated chronologically with the general transcript. The transcript must not be transmitted or otherwise dealt with by email. (h) The transcript of the restricted evidence shall have a covering sheet clearly marked with the date of the hearing at which the restricted evidence was given and the words: "Gender Restricted Evidence – adult males only – see orders of Lindgren J made 17 May 2002 in proceeding WAG 6005 of 1998". (i) The transcript of the restricted evidence shall have the same note printed on each page. (j) The transcript must not be viewed by persons other than adult males (but not uninitiated Aboriginal adult males) and the Judge. (k) Male counsel for the parties, with the assistance of their clients' respective male experts, if any, shall use their best endeavours to agree upon the evidence given in restricted session that may be made available as non-confidential transcript, and upon a statement that may be tendered as to the effect, without disclosing the content, of the remaining restricted material. (l) Following the conclusion of this proceeding or of any appeal against the decision given in it, the parties other than the Cosmo Newberry respondents shall destroy all copies of all gender restricted evidence within their possession, power or control, and file an affidavit of destruction and serve a copy of that affidavit on the Cosmo Newberry respondents. (m) Save for the copies for the Court and for any person present at the hearing of the evidence (which copies shall be numbered by the Registry's remote hearings co-ordinator and the name of the recipient recorded by the co-ordinator), copies must not be made of the transcript. disposal of motions 16. Paragraphs 1 and 2 of motion brought by the applicants and the GLSC respondents by notice of motion filed on 7 May 2002 (relating to the Mt Margaret/Lake Carey complex of sites) be adjourned to a date to be fixed. 17. The following motions brought by the following notices of motion be otherwise dismissed, with no order as to costs: Motion brought by by notice of motion filed on Group 5A respondents 6 May 2002 Group 5B respondents 6 May 2002 Group 6A respondents 6 May 2002 Cosmo Newberry respondents6 May 2002 (2 paras) Cosmo Newberry respondents6 May 2002 (7 paras) Applicants 7 May 2002 (no numbered paras) Applicants 7 May 2002(4 paras) Applicants 13 May 2002 Liberty to apply 18. Each party has liberty to apply at any time for a setting aside or variation of these orders or of any of them. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.